Opinion
12-CV-0267A
04-20-2012
FRANK DURWOOD MIRAGLIA, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
DECISION AND ORDER
Plaintiff has requested permission to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and has met the statutory requirements. In addition, plaintiff has submitted an application for assignment of counsel. Accordingly, plaintiffs request to proceed as a poor person is hereby granted and plaintiffs request for assignment of counsel is denied as premature. In addition, plaintiffs complaint has been reviewed by the Court with respect to the 28 U.S.C. §; 1915(e)(2) criteria.
A more fully developed record will be necessary before the Court can determine whether plaintiffs chances of success warrant the appointment of counsel. Therefore, plaintiffs motion is denied without prejudice to its renewal at such time as the existence of a potentially meritorious claim may be demonstrated. See Hendricks v. Coughlin, 114 F.3d 390,392 (2d Cir. 1997) (when determining whether to appoint counsel, the Court must first look to the "likelihood of merit" of the underlying dispute); see also Cooper v. A. Sargenti Co., 877F.2d 170, 172 (2d Cir. 1989) (The factors to be considered in ruling on a motion for the appointment of counsel include "the merits of plaintiffs case, the plaintiffs ability to pay for private counsel, [plaintiffs] efforts to obtain a lawyer, the availability of counsel, and the plaintiffs ability to gather the facts and deal with the issues if unassisted by counsel.")
The Clerk of the Court is directed to file plaintiffs papers, and to cause the United States Marshal to serve copies of the Summons, Complaint, and this Order upon the named defendant without plaintiffs payment therefor, unpaid fees to be recoverable if this action terminates by monetary award in plaintiffs favor.
IT IS SO ORDERED.
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DAVID G. LARIMER
United States District Judge
Date: April 25, 2012
Rochester, New York